Sharing Attorney Andrew Lieb's interview on Newsy - He addressed hearsay about vaccine mandates in the workplace such as: Do you get unemployment if you get fired for refusing vaccination?

Click HERE to watch the Interview

 The Lieb Cast answers the following questions about Biden's employment vaccine mandate in the latest podcast: 

1. Can Biden / OSHA issue an Executive Order / Regulation mandating employment vaccines? 
2. Can the Federal Congress issue a statute mandating employment vaccines or is that a state's rights issue?
3. What is the precedent for an individual state to issue a vaccine mandate and would it be upheld?
4. Does it matter if an individual state's Governor or Legislature issued an employment vaccine mandate for enforceability?
5. How does a sincerely held religious belief against vaccines avoid employment vaccine mandates?
6. How can employers refuse an accommodation who has a disability or sincerely held belief and requests to avoid an employment vaccine mandate?

Plus, we discuss brisket, ice cream, 9/11, Rosh Hashanah, Yom Kippur, horse dewormers, and most importantly, we break down the hiring / staffing issues faced by employers everywhere.

Link to Podcast: https://www.listentolieb.com/876124/9172946-legal-breakdown-and-analysis-of-biden-s-employment-vaccine-mandate

The New York State Supreme Court (lowest level court with jurisdiction) issued a temporary restraining order until the sooner of a hearing or 9/22/21 concerning New York City's vaccine mandate for public education employees who instead argue for a Vax-Or-Test policy. 

To see the arguments yourself, in The New York City Municipal Labor Committee et al vs. The City of New York et al, click here. 

Specifically, the Order, at issue, "requires [vaccines for] all DOE staff, City employees, and contractors who 'work in person in a DOE school setting or DOE building'; and '[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person' to – no later than September 27, 2021"

The teachers union makes three arguments against the Order, as follows:

• "[B]odily integrity and the right to refuse medical treatment;"
• A violation of "due process rights" because it prevents "permanently-appointed DOE and City employees declining vaccination from engaging in their employment;" and 
• It "fails to provide required exceptions for those with medical contraindications or sincerely-held religious objections". 

The best argument is clearly the third because "DOE has advised that it will not allow those with medical or religious exceptions – should those be accepted – to continue working in person under a strict testing regimen, or remotely with those students receiving remote instructions. Nor is it clear at this stage how those who refuse vaccination will be treated as to leaves, benefits, and other statutory rights." 

While DOE may be able to refuse a given accommodation request that results in an employee working in a building, accommodations must be decided on a case-by-case basis, under binding law, and therefore, such a blanket policy is legally problematic. 

As we've been suggesting from the outset, NYC Government should negotiate with the Union as to appropriate accommodations. Think about it like a class action of the cooperative dialogue (required mediation following an accommodation request under NYC employment discrimination law).

Otherwise, NYC Government will continuously find itself engaging in individualized cooperative dialogues with each employee that requests an accommodation. That is a financially infeasible result for NYC plus it will cause many teachers to bring suit following each cooperative dialogue. All of this can and should be amicably resolved through advance negotiations by giving the Unions a seat at the table.

We have been inundated with calls this morning, since Andrew Lieb's appearances on Fox 5, LI News Radio, and WFAN this past week so we thought it was important to put some general information out there for those seeking a vaccine exemption based upon sincerely held religious beliefs. 

To be clear, a sincerely held religious belief DOES NOT automatically get you an exemption from a vaccination requirement.

Instead, your religious belief will, at best, get you an adjustment (known as an accommodation) to a vaccine requirement if such adjustment does not create an undue hardship for your employer. 

Let's break that down a little further.

First, the Equal Employment Opportunity Commission (EEOC) tells us what a sincerely held religious belief is means here. In summary, a sincerely held religious belief "concerns 'ultimate ideas' about 'life, purpose, and death.' Social, political, or economic philosophies, as well as mere personal preferences, are not 'religious'," 

As a result, if you want to claim a religious exemption, DO NOT make vaccine mandates POLITICAL. Instead, make your objection to vaccines SOLELY about your vision for life, purpose, and death. 

Moreover, don't be defeated if you are not a practicing member of an organized religion or if your religious leaders disagree with your ultimate ideas. Specifically, EEOC tells us that "new, uncommon, [beliefs, which are] not part of a formal church or sect, [and] only subscribed to by a small number of people, or that seem illogical or unreasonable to others" also qualify.  

That being said, there is another prong to the law that is being lost in the conversation today. 

An exemption to a vaccination requirement need only be given if it does not present an undue hardship to your employer.

Under federal law, employers are in the driver's seat because an undue hardship is anything that creates more than a de minimis cost. So, unless a worker works from home and wants to continue to work from home it will be a challenge to find a vaccine accommodation request that qualifies. Barriers, masks, tests, changed hours, modified locations, and the like will likely pose more than a de minimis cost and therefore, an accommodation request can be denied. But, that is ONLY under federal law. 

States, like New York, afford workers with more rights. In New York, a worker should receive an accommodation unless it imposes a significant expense or difficulty on an employer. That being said, accommodations that compromise the safety of others, such as co-works, customers, and the public, at large, always create undue hardships on employers. Therefore, workers should be highly conscious of public health when making their requests.

Putting this all together, a worker should carefully draft their accommodation request form and emphasize that they truly have a sincerely held religious belief by focusing away from politics and instead, on such issues as life, purpose, and death. Then, a worker's request should suggest alternatives to the vaccine such as limiting contact with others, regular COVID testing, and masking. Then, if the worker gets denied, they will have a good case for employment discrimination, which can and should be filed in court.

If that is the route that you are thinking, please hire a lawyer from the get go. Get any employment lawyer, at the start of it, because you are going to need to ensure that your initial accommodation request form (and other communications) do not kill your case before it's filed. You are also well advised to keep your politics out of it, out of social media, and away from your daily conversations. If you are truly seeking a religious exemption, politics aren't what is relevant, your right to worship freely is what matters.